Industrial Steel Erectors, Inc.

INDUSTRIAL STEEL ERECTORS, INC. 827 Industrial Steel Erectors, Inc. and Daniel David Nichols. Case 10-CA-10334 May 23, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 21, 1974, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed a brief in opposition, as well as exceptions concerning the remedy. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Daniel Nichols was discharged on August 16 in violation of Section 8(a)(3) and (1) because he attempted to enforce a collective-bargaining agreement. Because of earlier experiences when Nichols was employed, Respondent President Walker had requested Local 92 not to refer Nichols to any of Respondent's jobs. However, the Administrative Law Judge, viewing as critical that Nichols was in fact hired, attached no significance to Walker's request though finding that "all participants in the events of August 15 and 16 acted with knowledge of Walker's attitude toward and instructions concerning Daniel Nichols."1 Thus the Administrative Law Judge concluded that Ni- chols' discharge on August 16 was discriminatory because it was based on Nichols' attempts, after being hired, to get an additional ironworker sent to the job in compliance with the contract. We do not agree in the circumstances of this case. The Respondent has long hired through Local 92 and is apparently continuing to do so. In fact, Local 92 referrals were put on this job when it reopened on August 17. There is no showing that discrimination to discourage union activity was the motivation in directing Local 92 to cease referring Daniel Nichols. Instead the record shows that the direction was given because Nichols was considered an unacceptable employee due to what Respondent terms "job- hopping." When Respondent's president learned on August 16 that Nichols had been hired again nonetheless, he promptly refused to have him continue working, terming him a "troublemaker." In view of the background here and Respondent making clear to the Union, before this occurrence, that it no longer wished to have this specific employee referred, we see no basis on which to conclude that the discharge was discriminatorily motivated within the meaning of Section 8(a)(3), rather than a result to be anticipated from Respon- dent's specific instruction to the Union not to refer. In the circumstances we find that the General Counsel has failed to establish by a preponderance of the evidence that Nichols was discharged for reasons that violated the Act. Accordingly, we shall dismiss the complaint in its entirety.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i Respondent contends that this finding is not entirely correct as Foreman Graham, who hired Nichols on August 15 , did not know of the instructions According to Walker, these instructions were given to Local 92's President Harlow, to Business Agent Thacker, and to Respondent Superintendent George King, and were known to Nichols himself 3 to 4 months before this incident occurred . The instructions to the Union not to refer Nichols were a consequence of his work history On two previous occasions he and at least one other person while in Respondent's employ abruptly quit jobs causing expense and loss of worktime for Respondent. Both Harlow and Thacker testified that Walker had, before this case, complained about Nichols leaving Jobs 2 See Ritchie Industries Corporation, 204 NLRB No 39, in which the Board affirmed an Administrative Law Judge 's Decision in dismissing an 8(a)(3) complaint where the alleged discnminatee had a poor work record that could as well have been the reason for the discharge as his effort to be included in the existing bargaining unit See also Pacific Maritime Association and John A Mahoney, 140 NLRB 9, 18, dismissing an 8(a)(3) complaint and Pacific Maritime Association and Millon Moore, 121 NLRB 938, 940, dismissing an 8(bX2 ) complaint wherein the Respondent refused to refer through a hiring hall for, respectively , disrupting the operation of the hall and insubordination on the job to which referred-reasons unrelated to union membership. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Administrative Law Judge: The charge in this case was filed on August 17, 1973.1 The complaint was issued on October 30 . The hearing was held on November 27 in Birmingham , Alabama. The issue litigated was the legality of Respondent's closing down a job on August 16 in order to get rid of Daniel David Nichols, the Charging Party, because Nichols was insisting that it live up to the manning provisions of its contract with Structural Ironworkers Local Union No. 92, International Association of Bridge, Structural & Ornamental Ironworkers , AFL-CIO . For the reasons set forth below , I find that it thereby violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Upon the entire record, I make the following: i All dates are 1973. 210 NLRB No. 130 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION Respondent,' an Alabama corporation, is engaged in Birmingham, Alabama, in the business of erecting steel on construction projects. During 1972, a representative period, it performed services valued in excess of $50,000 for, U.S. Pipe Company. U.S. Pipe Company is also engaged in the construction business in Birmingham. During the same year, it received goods valued in, excess of $50,000 directly from suppliers located outside the State of Alabama. H. THE UNFAIR LABOR PRACTICE A. Facts Daniel David is one of nine "Nichols boys"-Daniel, his four brothers, and four nephews-who are ironworkers and members of Local 92. Prior to 1973, Daniel worked for Respondent on two occasions. Daniel, his brother, Thur- mond, and another brother or nephew quit a project in Tuscaloosa, Alabama, leaving Respondent with no help one morning. On the other occasion, referred to in the record as the Mayer Electric job, Daniel protested that Respondent was using an apprentice illegally in a raising gang. When Respondent insisted that it could use the apprentice under the circumstances, Daniel and Thurmond quit at midday. As a result, the job was shut down for the balance of the day. Because of these two experiences, S. M. Walker, president and owner of Respondent, instructed officials of Local 92 prior to August 15 that he did not want Daniel Nichols referred to any of his jobs. This message had been communicated in two versions. Walker had said that he did not want any of the Nichols boys. He had also said he did not want Daniel or Thurmond Nichols. All participants in the events of August 15 and 16 acted with knowledge of Walker's attitude toward and instructions concerning Daniel Nichols. On the morning of Wednesday, August 15, Jimmy L. Harlow, president and assistant business agent of Local 92, referred Daniel Nichols to Respondent at the Huffman Baptist Church addition in Birmingham. When Nichols arrived at the project, he was put to work by Foreman Theo Graham. Graham is a member of Local 92. One journeyman (Eddie Goolsby) and one apprentice iron- worker were also on the job. Goolsby informed Nichols that Goolsby was steward. Nichols raised with Graham the question of whether Respondent had enough men on the job. Nichols was referring to article 16 of Local 92's contract with Respondent which provides, in part: on all mobile or power operated rigs of any description no less than four (4) men and a foreman shall be employed unless previously agreed to by the employer and the Union Business Agent. Graham explained to Nichols that an ironworker named Roland Bradbury was due back from vacation and Graham was holding a job open for him. George King, Respondent's superintendent, came to the jobsite around 10 a.m. for a short time. He saw and spoke to Nichols. Nothing was said about Nichols being on Respondent's job despite Walker's orders to the contrary. King is also a member of Local 92. Nichols worked August 15 without incident. Nichols arrived for work a few minutes before the 7 a.m. starting time on Thursday, August 16. He and Goolsby decided to make an issue of the number of ironworkers on the job. Goolsby was willing to let Nichols take the initiative. They decided that Nichols would assume the steward's mantle. Nichols told Graham the job was one ironworker short. Graham told Nichols to telephone King. Nichols went to a telephone in the basement of the existing church building. He called King. He told King that he had taken over as steward on the job and complained that, under the contract, Respondent had to have another man on the job. King said that he had a call in at Local 92's hiring hall for six men. Nichols said he would check with H. L. Thacker, Local 92's business agent. Nichols called Thacker at home. Thacker said he would have to check King's statement when he got to the hall. He instructed Nichols to call him at the hall in half an hour. Nichols went to work shortly after 7:30 a.m. Goolsby and the apprentice had worked without interruption since 7 a.m. Graham telephoned King and told him no work was getting done' on the job because Nichols was on the telephone. King reported 'to Walker, who learned for the first time that Daniel Nichols was working for Respondent again. After checking with the general contractor from whom Respondent had received the steel erection subcon- tract on the Huffman Church job, Walker instructed King to close the job down until Respondent could get enough men. King went to the project. In the meantime, a few minutes after 8 a.m., Nichols went back to the telephone in the church basement despite Graham's protest and called Thacker at the hall. Thacker was in' the midst of telling Nichols that Local 92 had no record of a call from King for six men for its various projects when King arrived. King informed Nichols that he was closing down the project, that Graham, Goolsby, and the apprentice were being transferred to another job, and that Nichols was discharged with 12 hours' pay, 8 for August 15 and 4 for August 16. King got on the telephone and told Thacker the same thing. Thacker protested. After King hung up, Nichols called Thacker back, then went to the hall. In the meantime, Thacker telephoned Walker and protested. The upshot of their conversation was an agreement to meet at the jobsite at 10 a.m. Nichols, Thacker, and a number of ironworkers includ- ing Nichols, brother, James, returned to the site on schedule. They met Walker and King. Nichols, Thacker, and Walker went into the area where work was being performed so that Thacker could inspect it. Thacker told Walker that he needed four ironworkers on the job. He urged Walker to resume work immediately, taking Nichols back and hiring one more man. Thacker pointed out that Nichols was only trying to do the steward's job of policing the contract. Walker adamantly refused to take Nichols back under any circumstances because he was a trouble- maker. He made a derogatory remark about the "Nichols boys" in the presence of James Nichols. James, who had worked for Respondent on several occasions without INDUSTRIAL STEEL ERECTORS, INC. 829 incident, took offense. Walker apologized and said he had no objection to James , his animosity ran only to Daniel and Thurmond Nichols. That afternoon Local 92 referred James Nichols to the Huffman Church job, starting Friday morning, August 17. As events turned out , James did not actually go to work there. Respondent shut down the Huffman Church project for only 1 day. Graham, Goolsby, and the apprentice worked August 16 on another project. They returned to Huffman Church when Respondent resumed work there on Friday morning, August 17. Daniel Nichols went to work for another contractor on Monday morning, August 20. He was referred to that job by Local 92's hiring hall. B. Analysis and Conclusions There is no dispute about the above facts , or, for that matter, about the conclusionary fact that Respondent discharged Daniel Nichols and has since refused to reinstate him because he sought to enforce Local 92's contract with Respondent . Rather, Respondent advances three defenses . None has any merit. First, Respondent contends this case constitutes an attempt by the National Labor Relations Board to enforce its contract with Local 92. This argument misconceives the nature of this proceeding. It is concerned only with whether Daniel Nichols has been discriminated against within the meaning of the Act and, if so, what must be done to remedy the situation . It is in no way concerned with whether Respondent uses 4 men and a foreman, or, for the matter, 400 men and a foreman, to erect steel. Second, Respondent contends that the situation only arose because Local 92 ignored its orders not to send Daniel Nichols to any of its jobs. The point is well taken. Unfortunately, it is without legal significance. There is no issue presented in this case as to the legal effect of Walker's instructions . From a legal point of view, a much more interesting problem would have been posed if Nichols had filed a charge because Local 92 had acceded to Walker's instructions or if, as the parties to the contract appear to agree Respondent had the right to do , it had turned Nichols away with 2 hours' showup pay when he arrived for work on the morning of August 15. However, neither of these events occurred. What did occur was that Nichols was hired by Respondent and went to work in a normal manner. The fact that Walker did not learn Nichols had been hired contrary to his orders until Nichols started making "trouble" on the morning of August 16 is irrelevant. Nichols' hiring became a fail accompli when Foreman Graham put him to work on the morning of August 15. The fact that Graham and Superintendent King, the other supervisor who had knowledge of Nichols' hiring before August 16, were members of Local 92 does not make them any the less agents of Respondent, nor is there any evidence of a plot between Local 92 on the one hand and Graham and/or King on the other to defy Walker and frame Respondent . The simple answer to Respondent's second defense is that Nichols was hired. The issue posed by this case relates to his firing, not his hiring. Third, Respondent argues that the discharge of Nichols was privileged because Nichols created an illegal work stoppage on August 16. It relies on the complaints and grievances provision of its contract with Local 92 which reads, in part: There shall not be any slow downs, or work stoppages individually or collectively , while complaints or griev- ances are being adjusted . Any and all Employees who violate this section may be discharged. However, there is no evidence that any work stoppage took place on the morning of August 16. Goolsby and the apprentice never stopped working until King closed the project down. As for Nichols individually , his first trip to the telephone, from which he returned and went to work as soon as he had completed the necessary calls, was made with Graham's permission, in fact, at Graham's invitation. The second trip, while despite Graham's protest, was a necessary extension of the chain of events Graham had permitted to be set in motion with the first trip and a part of Nichols' protected efforts to carry out the duties of a steward. Respondent discharged Daniel Nichols on August 16 because he attempted to enforce a collective-bargaining agreement. In so doing, it violated Section 8(aX3) and (1) of the Act. Upon the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Industrial Steel Erectors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Structural Ironworkers Local Union No. 92, Interna- tional Association of Bridge, Structural & Ornamental Ironworkers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Daniel David Nichols on August 16, 1973, for attempting to enforce a collective -bargaining agreement, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practice found , remedy it by offering reinstatement to Daniel David Nichols and making him whole for earnings he lost as a result of the discrimination against him, and post the usual notice . However, it is clear from the record that, by the exercise of suitable diligence, Nichols could have been employed as early as Friday, August 17, through Local 92's hiring hall on another job with the same terms and conditions of employment as the job from which he was discharged by Respondent and did, in fact, begin such a job on Monday, August 20. Therefore, the sum required to make him whole is the 4 hours' pay he lost on August 16, with interest at 6 percent per annum as prescribed in Isis Plumbing & Healing Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions of law, and the entire record in this case , and [Recommended Order omitted from publication.] pursuant to Section 10(c) of the Act, I hereby issue the following recommended: